For good and valuable consideration, you and Mountain Equipment Sales and Rental, LLC (MESR) -also referred to as “lessor”, “we”, “us”, and "our", agree as follows:
1. As used herein, "P.1" refers to the first page or "face" of this Contract. "Contract" refers to P.1 together with these Terms and Conditions. "Rented item(s)" or "item(s)" means the item(s) provided (rented, or if specifically set forth to you), identified on P.1 (including any instructions and/or safety devices provided per Section 14 below). "Site" means the address set forth on P.1 where the item(s) is/are to be delivered and/or used, and "Customer," "Lessee," "you" and "your" mean the "Renter," "Customer," "Lessee" and/or "Guarantor" (as applicable), as identified on P.1.
2. You agree to rent from MESR the Rented item(s) for the period specified on P.1 (the "Term"), and to pay our stated rental rates (the "Rent") together with all other charges accruing hereunder, without proration, reduction, or setoff. You shall remain liable for all injuries and damages arising from or associated with such item(s) for the entire Term and until all Rented item(s) are returned to and accepted by MESR in the return condition required under this contract, including Section 12. Unless otherwise specifically agreed by MESR, all rental rates are for normal use of the Rented item(s) on a single-shift basis during the Term, not exceeding 8 hours per 24-hour period for which Rent is charged.
3. Rental periods are defined as 40 hours per 7 days and 160 hours per 28 days. Additional rent applies for late returns and overuse, charged at overtime rates if notified in advance. No cancellation or rent reduction is allowed for transit time, acts of God, force majeure, or nonuse periods. Rent is based on estimated term length and must be prepaid. MESR retains ownership of all rented items unless rented from third parties. You have control of items during the term but must comply with this contract. You cannot place liens, claim ownership, or transfer rented items without written consent. MESR may substitute or assign rented items and contracts without responsibility for pre-existing liabilities.
4. Upon receipt or delivery of the Rented Item(s), unless you reject them, you agree that: (a) each Item is: (i) complete and in good condition; (ii) suitable for your purpose and acceptable to you; and (iii) selected, examined, counted, and tested by you or your agents; (b) you: (i) understand all relevant laws, regulations, instructions, and standards; (ii) will comply with them; (iii) recognize the importance of using personal protective equipment and safety devices, such as RESPIRATORY and FALL PROTECTION; (iv) will use each Item reasonably and safely for its intended purpose; (v) will obtain necessary licenses, permits, and approvals, and ensure clear marking of underground utilities before use (call 811 and visit www.call811.com at least 3 but not more than 10 business days in advance); (vi) will cease use of any damaged or defective Item; and (vii) will ensure others comply with this Contract. In case of theft or an accident involving any Rented Item(s), notify the local police and MESR immediately, and inform MESR of any breaches of this section.
5. You agree to ensure the Site is reasonably clean, safe, secure and fit for delivery and use of the Rented Item(s) at all times. If we agree to provide any service(s) (including without limitation, delivery and/or retrieval), you shall: (a) pay our regular charge(s) therefor and for all waiting time; (b) be present at the Site at the agreed time(s): and (c) ensure our personnel have adequate access to the Site. We will not be responsible for any delay(s) caused by you or any other parties including providers of other equipment or services ("Other Party(ies)") for which you hereby agree to Indemnify, defend and hold harmless MESR. If you are not present upon delivery or retrieval of any ltem(s),
you agree to accept the statements of our representatives regarding the same (including the status, condition, quality, quantities and defect(s) of or with respect to the ltem(s) and the Site).
6. In the event of a Malfunction as defined in§ 4), you will immediately notify MESR, and provided such Malfunction did not result from or in connection with: (a) any wrongful or negligent act or omission of/by you or anyone you permit to use or otherwise deal with any Rented Item: or (b) your breach of any provision of this Contract, MESR may, at its sole option: (i) repair the Malfunctioning Item; (ii) provide you with a comparable item; or (iii) solely with respect to the Malfunctioning Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. Neither MESR nor any TPO shall have any other obligation(s) regarding Malfunctions, all of which you hereby waive.
7. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS AND SHOULD BE SERVICED, MAINTAINED, CLEANED, REPAIRED AND USED WITH GREAT CARE, ONLY FOR THEIR INTENDED PURPOSE(S). AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED, FAMILIARIZED, AND IF APPLICABLE, LICENSED, ADULT USERS, OPERATORS AND OCCUPANTS. YOU AGREE TO PROVIDE All APPLICABLE FAMILIARIZATION,
TRAINING, INSTRUCTIONS AND WARNINGS TO ALL SUCH PARTIES, and ensure that each such Item is used, operated and occupied safely and only: (a) for Its Intended purpose(s); (b) within its rated capacities unless otherwise specifically agreed by MESR, at the Site; (d) BY ADULTS WHO SATISFY ALL REQUIREMENTS OF THIS§ 7; and (e) in full compliance with this Contract.
8. NO WARRANTIES: MESR IS NOT THE MANUFACTURER OR DESIGNER OF ANY OF THE ITEM(S) REFERENCED IN THIS CONTRACT, ALL OF WHICH ARE PROVIDED "AS IS''. NEITHER MESR NOR ANY TPO, MAKES ANY WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND/OR GOOD AND WORKMANLIKE PERFORMANCE, AS WELL AS ANY WARRANTY(IES) ARISING FROM OR IN CONNECTION WITH ANY COURSE OF DEALING, COURSE OF PERFORMANCE AND/OR USAGE OF TRADE) REGARDING ANY ITEM(S) OR SERVICE(S) REFERENCED IN THIS CONTRACT, NOR DOES MESR OR ANY TPO MAKE ANY WARRANTY(IES) AGAINST INTERFERENCE OR INFRINGEMENT, ALL OF WHICH YOU WAIVE. NO DESCRIPTIONS, SPECIFICATIONS, DEPICTIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY MESR OR ANY TPO. THERE ARE NO WARRANTIES OTHER THAN THOSE APPEARING ON THE FACE HEREOF.
9. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, LOSS, PROPERTY DAMAGE, AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, INSTALLATION, STORAGE, CLEANING, DISINFECTION, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SERVICE(S) (INCLUDING WITHOUT LIMITATION, YOUR FAILURE TO MEET APPLICABLE STANDARD(S) OF DUE CARE (Collectively, "RISKS"); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MESR, EACH TPO, their
respective parents, partners, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an Indemnitee"), for, from and against all such RISKS, your breach of any one or more of the terms hereof, any actual or alleged negligence, and all associated attorneys' fees and costs; and except only as provided in§ 6, (C)WAIVE all rights, claims, remedies, damages and defenses available under the Uniform Commercial Code, as well as all direct, Indirect, Incidental, consequential, general, especial, exemplary and punitive damages, against each and every indemnitee.
10. You agree to maintain appropriate insurance protecting MESR from all loss, damage, expense, or penalties arising from or related to the use of the Equipment during the rental period. This insurance must include general liability, property damage/inland marine, bodily injury, workers' compensation, and automobile liability. Such policies shall, whenever possible: (i) name MESR and each TPO as an additional insured and loss payee; (ii) waive subrogation against them: (Iii) be primary and non-contributory; and (Iv) include such other provisions (including deductibles) as we may require. You irrevocably appoint MESR as your agent and attorney-In-fact for purposes of submitting, negotiating and settling claims on all such policies.
11. You agree to protect, properly maintain, and care for each Rented Item at all times, keep it safely and securely stored and locked when not in use, and return it to MESR on time, clean, free of contaminants (Including without
limitation, asbestos, beryllium and silica) and otherwise in good order, condition and repair, properly serviced and maintained, and if applicable, full of the appropriate fuel, fluid and lubricants. If you fail to do so, then in addition to the amounts set forth on p.1, you will pay us: (a) Rent at our highest incremental rate for each succeeding full rental period until all ltem(s) has/have been returned or replaced as required; and (b) all costs and expenses we incur in connection with such failure. You shall not, nor shall you permit anyone else to: (I) use any Rented Item while under the influence of any intoxicant (s) (including without limitation, CANNABIS AND ALCOHOL) or to abuse, misuse, overuse, conceal, store with any third party, encumber, repair, modify or damage any Rented ltem(s); (ii) violate any Instruction, insurance policy or warranty; (iii) or expose any Rented ltem(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety equipment or device(s) in, on or with any Rented ltem(s): or (v) take possession of or exercise control over any Rented ltem(s) without our prior consent (in our sole and absolute discretion).
12. Your Rental shall be deemed a "net” rental. Accordingly, your obligations hereunder shall be absolute and unconditional and shall not be subject to any abatement, reduction, set-off, compensation, defense, counterclaim, cross-claim, interruption, deferment or recoupment, for any reason. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract, any other agreement(s) ("Other Contract(s)j between you and any indemnitee, and/or any of your obligations arising (t)hereunder or in connection (t)herewith; (b) provide any Incorrect or misleading Information to us: (c) become insolvent or bankrupt; or (d) die or cease conducting
business:
If MESR reasonably deems Itself insecure; or if any Rented ltem(s) shall be lost or damaged, you will be in DEFAULT under this Contract and such Other Contract(s), whereupon, we may with or without legal process or notice ·(and without liability to you), to the maximum extent permitted under applicable law: (i) cancel the Term and/or the subject Contract(s) (and/or your rights to use and possess the Rented ltem(s));(ii) seek relief from stay; (iii) recover, empty, lock, restrict, shut down, disassemble and/or disable such ltem(s) without being guilty of breach, trespass or wrongful interference, or liable for any injurie or property damage
(for which you agree to indemnify, defend and hold harmless each indemnitee); (iv) perform your obligations (t)hereunder on your behalf, without being obligated to do so; (v) purchase replacement ltem(s}; (vi) recover from you and/ or any guarantor our associated direct and indirect damages, losses, costs and expenses (Including without limitation, Rent for the entire scheduled Term, overtime, loss of use, interest, attorneys' fees, rental/repossession costs, and collection costs); and/or (vii) pursue any one or more other rights and/or remedies available (t)hereunder, at law and/or in equity, all of which are cumulative. . .
13. Disputes arising in connection with this Contract and/or its subject matter, shall, at the sole option of MESR, be submitted to binding arbitration in accordance with the Rules of the American Arbitration Association before a
single arbitrator and in a location selected by MESR. Judgment on the arbitrator's award shall be final and binding on the parties hereto and may be entered in any court of competent Jurisdiction. This Contract shall be governed by and enforceable under the laws of the state, and proper venue for all civil legal actions commenced in connection therewith which are not made subject to arbitration as provided above shall lie solely in the federal, state and local courts located in or nearest to the County, in which the MESR facility from which you obtained the ltem(s) Is located (unless waived by MESR). You consent and submit thereto and waive all claims that such venue has In an Inconvenient forum. YOU HEREBY WAIVE YOUR RIGHT TO TRIAL BY JURY.
14. You agree to pay all taxes (including, without limitation, all sale. use, transfer, machinery, business occupation and other taxes), fines, fees, assessments, tolls and other charges related to each Item. In the event legal action is commenced in connection herewith, the prevailing party will be entitled to recover Its costs and expenses associated therewith (Including without limitation, attorneys' fees) from the non: prevailing party: To the maximum extent permitted under applicable law, you grant to MESR a lien on all real and personal property: (a) placed In or on; and/or (b) Improved with, any Rented ltem(s). We may, without notice or liability to you, monitor and/or Inspect, in person and/or electronically (Including via Telematics/GPS systems) any Rented Item(s) at any time. you consent thereto and agree that all Information thereby obtained will be our exclusive property. If any performance required of MESR Is delayed or impaired as a result of any act or omission of/by you, any Other Party(les), "Act of God”, an event for force majeure, or any other event, fact or circumstance beyond our reasonable control, we will be excused from such performance. You waive the benefits of all statutes of limitations regarding our rights and remedies. All amounts due hereunder but not timely paid will bear interest at the lesser of: (I) 18% per annum; or (II) the highest rate permitted under applicable law until paid. You authorize MESR to charge all amounts coming due hereunder to any debit and/or credit card(s) you provide. You agree to pay us the maximum lawful charge for any check you write which is returned unpaid. Our maximum liability In connection with this Contract is limited to the amount(s) actually paid by you and received by us hereunder. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies valuable in connection herewith will constitute an election of remedies or a waiver of any of our rights or remedies. Time Is of the essence. There are no third-party beneficiaries hereto other than the applicable indemnitees. This Contract, and any addenda provided by MESR represent(s) the entire agreement between you and MESR, superseding all other oral and written agreements and representations (including our website and advertising). This Contract cannot otherwise be amended or extended except in a writing signed by Mountain Equipment Sales & Rental, LLC or our authorized agent(s). These Terms and Conditions apply to all ltem(s) Identified on P.1, and to all other Item(s) you obtain from us at any time (except only as otherwise agreed by MESR). You acknowledge that this Contract: (a) Is a true operating lease, and not a financing; (b) Is fair and reasonable; and (c) shall be enforceable by you, Mountain Equipment Sales & Rental, LLC, the other indemnitees and their respective Insurers, subrogees, successors and permitted assigns. The terms of this Contract and each Addenda(um) we provide are severable. If any provision (t)hereof Is deemed invalid or unenforceable by any court or arbitrator of competent Jurisdiction, such provision will be deleted, and the remainder of (t)hereof will remain valid and enforceable. Digital, electronic, photocopied and facsimiled signatures appearing on this Contract and/or any Addenda will be deemed originals.
15. OPTIONAL DAMAGE WAIVER is offered to reduce your out-of-pocket expenses when damages occur to the equipment while on rent. If and only if, we have offered, and you have elected to purchase our Damage Waiver and paid the non-refundable Damage Waiver Fee set forth on P.1 (if available), then solely with respect to ltem(s) covered by Damage Waiver ("Covered Items"), your liability for the cost to repair or replace such Covered Items will be limited as set forth in this contract, the terms of which you have carefully reviewed and hereby agree to. You may decline the Damage Waiver if you provide the property damage inland marine insurance referenced in § 10. Damage Waiver IS NOT INSURANCE, NOR IS IT A WARRANTY. By Lessee accepting Damage Waiver and paying the additional charge set forth, subject to the exceptions listed below, Lessee shall be entitled to the following protection: • Repair work will be performed at the discounted rate of $50.00 per hour as opposed to the standard labor rate charge of $125 per hour. • Parts necessary for the repair will be billed at Lessor's cost. Lessee shall not be responsible for ongoing rental expenses for the damaged equipment while the repair is being completed. Exceptions: Notwithstanding the foregoing, Lessee shall remain fully liable for all loss and/or damage to equipment arising from: • Loss or damage resulting from overloading or exceeding the rated capacity of equipment. • Loss or damage to motors or other electrical devices caused by artificial electrical current• Any tire damage. • Loss or damage resulting from lack of lubrication or other normal servicing of equipment. • Loss due to theft, mysterious disappearance, or shortage disclosed on inventory. • Loss or damage caused by negligence or infidelity of Lessee, his employees, persons with whom the equipment is entrusted. • Use of equipment in violation of any of the terms of this agreement, or any manner inconsistent with the manufacturer's instructions including but not limited to neglect, misuse, or abuse of equipment. • Rollover, tipping, or other similar incidents causing loss or damage to the equipment regardless of how the equipment was being used. • Any loss or damage to equipment (including lost rentals) as described in the EQUIPMENT USE section, • Water related damage due to sinking or submersion of the equipment into mud, water. or other substance. • Use or operation of the equipment in violation of any law or ordinance.
16. Any item(s) sold to you “Sales Items"), as provided on Page 1 are provided "AS-IS" and are subject to the terms of this Contract (modified to address sales); provided that our obligations under § 6 shall not apply to Sale
Items. All item(s) not specifically Identified as Sale Items on P.1 will be deemed "Rented Item(s)”.
17. WARNING: Misappropriating, failing to return, concealing, selling, encumbering and/or falling to pay rent for property of another may be deemed theft, resulting In CIVIL PENALTIES and/or CRIMINAL PROSECUTION.